Löfstedt's Review - Recommendations for review of 2005 Work at Height Regulation

30. Working at height continues to be the most common cause of occupational fatality, and is the second most common cause of major injuries suffered by employees (16 per cent in 2010/11)127. The Work at Height Regulations 2005, which transposed Directive 2001/45/EC, apply to all work at height where there is a risk of a fall liable to cause personal injury. Amongst other things the regulations impose a simple hierarchy for managing work at height and selecting the appropriate access equipment. Duty holders must first avoid work at height where possible, for example by doing the work from ground level; use work equipment or other measures to prevent falls, where work at height cannot be avoided; use work equipment or other measures to minimise the distance and consequences of potential falls, where the risk cannot be eliminated.

31. The previous Construction (Health, Safety and Welfare) Regulations 1996 had a general duty to prevent falls and a requirement to select and use specific types of work equipment to protect against falls when working at or above two metres, the ‘two mete rule’. A consultation in 2004 lead to the construction industry being divided broadly 50:50 on the necessity to retain the ’two metre rule‘. The then HSC took the decision not to include this reference point so that duties to assess the risks of falls from height, at all heights, were consistent across all sectors and that the most appropriate work equipment was selected to control risks in each case. This was considered to be the most effective way of ensuring standards were maintained for work at height at or above two metres and improved for work at height below two metres128. Geoff's shot was taken on a perfect day down at Town Quay Wharf, east bank of Barking Creek, East London, where his team from GCSI were investigation to assess the construction and ground conditions of the existing tidal frontage assets.

32. The evidence supports the removal of the two metre rule, with HSE statistics showing that 2,949 falls from below two metres resulted in a major injury in 2010/11 (compared to 475 major injuries from a fall over two metres)129, and the evaluation of the Work at Height Regulations finding that many employers had made changes to the way they managed working at height as a result of the regulations and removal of the two metre rule, including the provision of new access or safety equipment. However, the evidence also suggests that only a small number of managers were able to correctly define working at height and very few actually understood the regulatory requirements130. The blanket requirement has also led to some employers complaining that the requirements are onerous and unrealistic.

33. The regulations “apply to all work at height where there is a risk of a fall liable to cause injury” and “a place is ‘at height’ if (unless these regulations are followed) a person could be injured from falling from it, even it if is at or below ground level”. Some respondents to the call for evidence and elsewhere131 feel this leaves scope for the regulations to apply to work being carried out on the bottom rung of a stepladder or small stool, as someone could be injured, even though the risk may be low.

34. There have also been suggestions that the regulations appear to introduce an element of gold-plating. The Temporary Work at Height Directive (2001/45/EC) refers to ‘rungs’ and ‘stiles’, thus describing a ‘traditional’ ladder, but the Work at Height Regulations 2005 definition of a ladder includes steps and stepladders (stepladders are also used as an example in HSE guidance132). This could be interpreted as going beyond the scope of the original Directive and beyond what some consider practical given that stepladders are the most common piece of equipment used in retailing to gain temporary access at height. Another study argues that the regulations extend the scope of the Directive to including not only temporary workplaces but also permanent workplaces133.

35. The regulations themselves offer a risk-based approach but it is clear that there is a great deal of confusion about how to apply these regulations in practice.

I therefore recommend that the Work at Height Regulations and the associated guidance should be reviewed by April 2013 to ensure that they do not lead to people going beyond what is either proportionate or beyond what the legislation was originally intended to cover.

36. Any changes to the regulations should not result in an increased risk to employees or others.